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[2011] ZAECMHC 2
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Ngqele v King Sabatha Dalindyebo Municipality and Others ([2011] 8 BLLR 817 (ECM)) [2011] ZAECMHC 2; 2607/10 (17 February 2011)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT, MTHATHA
CASE NO: 2607/10
Heard on : 13/01/11
Delivered on : 17/02/11
In the matter between:
RICHARD FEZEKILE NGQELE
…......................................................
Applicant
and
KING SABATA DALINDYEBO MUNICIPALITY
…..............
First Respondent
MONDE MBOMVU TOM
…...................................................
Second
Respondent
FRANCES RONALD SIPHO NGCOBO
…..............................
Third
Respondent
JUDGMENT
NHLANGULELA J:
[1]
The relief sought:
This is an urgent application in which the applicant
seeks a final relief in the following terms:
“1. Dispensing with the normal forms and requirements for
service and directing that this application be heard as one of
urgency pursuant to the provisions of rule 6 (12).
2. The second respondent’s contract of employment with the
first respondent be declared to have lawfully and legally terminated
on the 30
th
October 2010 by effluxion of time.
3. The second respondent be interdicted and restrained from
performing any of the duties of the municipal manager of the first
respondent.
4. The first respondent be directed to inform the second respondent
that the employment contract between itself and the second
respondent
has legally terminated by
effluxion
of time
on the 30
th
October 2010.
5. The first respondent be interdicted and restrained from paying the
second respondent’s salary.
Alternatively:
6. Alternatively, that the second respondent’s contract of
employment with the first respondent be and is hereby declared
null
and
void.
Further and or alternative relief.”
[2]
The parties
:
The parties in this matter are described on affidavits
as follows: The applicant is an adult male, a member of the United
Democratic
Front, a political party, who has been deployed by his
party to represent it as a member in the Council of the first
respondent.
The first respondent is King Sabata Dalindyebo
Municipality, a local government municipal structure which is formed
in terms of
s 12 of the Local Government: Municipal Structures Act,
Act No 117 of 1998 (the Structures Act) and s 2 of the Local
Government:
Municipal Systems Act), Act N. 32 of 2000. The second
respondent is Monde Patrick Tom, an adult male, who is employed by
the first
respondent as a Municipal Manager. The third respondent is
Frances Ronald Sipho Ngcobo, an adult male, who used to serve in the
first respondent’s Council as an elected member and Executive
Mayor. Mr Ngcobo had already terminated his services with the
first
respondent when this application was brought on 08 December 2010.
[3] The urgency of this application arises from the fact
that the cycle of life of the current Council of the first respondent
will
come to an end in April/May 2011. Therefore, if this application
is disposed of at this stage the first respondent might, in theory,
be in a better position to appoint a new municipal manager to
commence his/her duties at the inception of the new Council. There
is
no dispute between the parties regarding the afore-stated position.
Consequently, to succeed the applicant will have to show
that he has
a right to the relief sought, actual harm has ensued or is imminent
and that there is no other legal remedy available
to him to secure
the relief sought other than by means of this application.
[4] The relief sought is opposed by the first and second
respondents. The third respondent neither filed a notice to oppose
the
relief sought nor filed a notice to abide the outcome of the
application. This is not surprising as the applicant states in the
founding affidavit that no relief is being sought against the third
respondent.
[5] The parties have filed full sets of affidavits. In
addition Mr Ndiyabulela Mtwa and Mr Mondli Cyprian Songca have filed
confirmatory
affidavits on behalf of the parties respectively. The
second respondent’s answering affidavit was filed for himself
as well
as the first respondent, he having been duly authorized by an
appropriate resolution of the first respondent’s Council to
oppose the relief sought.
[6]
The issue for decision
:
The central issue for deciding this application is
whether the second respondent’s contract of employment with the
first respondent,
which commenced on 19 November 2007, terminated by
effluxion of time on 30 October 2010.
[7]
The applicant’s case:
The thrust of the case sought to be made by the
applicant on the founding affidavit is that in terms of the
advertisement dated
28 August 2007 (annexure “A1” to the
founding affidavit) for a post of the municipal manager, a letter of
appointment
dated 02 November 2007 (annexure “C” to the
founding affidavit) a certain written employment contract and Council
Resolution
SCM 101/06/08 (annexure “B” to the founding
affidavit) and a written fixed term contract of employment of the
second
respondent (annexure “MMPT 4” to the answering
affidavit) was for a duration of three (3) years. It started in
November
2007 and should have come to an end on 30 October 2010 by
effluxion of time. However, the third respondent, who served as the
Executive
Mayor at the time, signed annexure “MMPT 4” for
a fixed term of five (5) years. The applicant states that the third
respondent was not authorized by the Council to do so and, thus,
annexure “MMPT 4” is
null
and
void.
[8] In so far as the documents annexure “A1”
and Resolution SCM 101/06/08 as aforementioned are vital for the
decision
of this case they must be quoted hereinunder. Annexure “A1”,
in a truncated form, reads:
“The Municipality herein invites applications form experienced,
qualified, innovative committed and energetic individuals
with vision
for appointment to the following positions on a three-year fixed term
based contract:
...
MUNICIPAL MANAGER
…
CHIEF FINANCIAL OFFICER
... .”
The Resolution SCM 101/06/08 reads:
“
The Contract Of The Municipal Manager:
The matter was introduced verbally by the Portfolio Chairperson of
the Corporate Services. No documentation was circulated on the
matter.
On the motion of Councillor L.N. Ntlonze, seconded by Councillor
F.R.S. Ngcobo,
RESOLVED
(a) That His Worship the Executive Mayor, Councillor F.R.S. Ngcobo is
AUTHORISED
to sign the contract between the KSD
Municipality and the Municipal Manager, retrospectively;
(b) That it is
NOTED
that Council has paid the balance
of R13 000-00 towards the studies of the Municipal Manager; and
(c) That a detailed report on the payment of the cellphone contract
for the Municipal Manager would be tabled at the next ensuing
Council
meeting by the Convernor of the Adhoc Committee, Councillor L.N.
Ntlonze.”
The Honourable Speaker requested Councillor to vote for the
appointment of the Municipal Manager. Councillor M.A. Mayekiso moved
that the request by the Speaker is supported and he was seconded by
Councillor M. Soldati. The Office of the Council and Committee
Services calculated the number of Councillors who were in favour or
against the appointment of Mr M.M.P. tom as the Municipal Manager
for
KSD Municipality. All Councillors voted by show of hand. The results
were as follows:
IN FAVOUR OF THE APPOINTMENT: 40
AGAINST THE APPOINTMENT : 0
All the names of 40 Councillors who were in favour of the
appointment of the Municipal Manager are reflected in this set of
minutes.”
[9] On the foregoing, the applicant contends that since
it was never the intention of the first respondent to conclude an
employment
contract with the second respondent for a period of five
(5) years, this Court should declare that the contract of employment
of
the applicant terminated on 30 October 2010.
[10] In an apparent alteration and/or expansion of the
cause of action the applicant sets out further grounds for the relief
sought
in the replying affidavit. He states that annexure “MMPT
4” never came into existence but that another employment
contract
for a period of three (3) years was circulated for perusal
and deliberations at a special Council meeting held on 15 April 2008
at eNkululekweni Council Chamber, Mthatha. It will help to quote
paragraphs 10.1 of the applicant’s replying affidavit. It
reads:
“ 10.1.1 The document concerned [the unidentified employment
contract] and which was submitted to Council insofar as the
term and
or duration of the contract is concerned was for three (3) years and
same was collected back from me and same was the
case with all
Councillors as it was a confidential contractual document that
involves one of our employees.
For that reason, I no longer have
it in my possession.
I categorically deny that a 5 (five) year fixed term contract
[annexure MMPT “4”] was ever circulated in the
Council
meeting of the 15
th
April 2008 or any other Council
meeting for that matter hence there is not a single Councillor who
gainsays my allegations
and or who supports the respondent’s
version on issued debated by Council even in the second
respondent’s absence.”
(The underlining is mine for emphasis)
[11] The applicant states further in the replying
affidavit that annexure “MMPT 4”, even if it did exist,
was in any
event
null
and
void
for lack of compliance
with s30(5)(c) of the structures Act.
[12]
The respondents’ defences:
In
limine
, the respondents raised an objection to
annexure “C” as well as to any averment relating thereto
which is made by the
applicant in his affidavits concerning the
existence of such annexure. Annexure “C” is in all
respects a replica of
annexure”D” except that it provides
that the respondents agreed to an employment contract for three
years. The thrust
of the objection is that annexure “C”
had never come into existence but that annexure “D” to
the founding
affidavit, in terms of which the second respondent was
appointed as the Municipal Manager for a fixed term of five (5)
years, is
the authentic document which was made by the first and
second respondents on 02 November 2007. To this objection the
applicant
stated crisply in the explanatory affidavit as follows:
“ I do not know how annexure “C” to my founding
affidavit was generated [by one Mr Voices Njomane] and as such
am not
able to assist the Court in this respect”
He went further to say the following in the replying
affidavit:
“ 1.3 Now that it has since transpired that annexure “C”
was placed before experts and knowing their findings
[that it is a
forged document] I do not place reliance on it at all given the
credential wait (
sic)
it carries.”
Based on these concessions to the respondents’
objection I granted the order in an
interlocutory
application
striking out annexure “C” and all the averments relevant
thereto which are contained in the applicant’s
papers.
[13] In my view the ruling I made on annexure “C”
explains the reason for applicant’s reliance on the new ground
that annexure “MMPT 4” is
null
and
void
for
non compliance with s30(5)(c) of the Structures Act.
[14] The next defence raised on the papers is that all
procedural steps for the appointment of the second respondent were
adhered
to until a written and legally binding written contract of
employment, annexure “MMPT 4”, for a period of five (5)
years was made on 20 November 2007 for the second respondent to
commence with statutory duties of the municipal manager on 19
November
2007 until 18 November 2012, the date which falls within a
period ending two years after the election of a new Council in
April/May
2011 as envisaged in s 57 of the Systems Act. The
respondents state further that annexure MMPT “4” had been
preceded
by his acceptance of the offer of employment for five (5)
years in terms of annexure “D” dated 02 November 2007.
Then
the Council confirmed the five year contract by means of
Resolution 125/10/07 of 30 October 2007 (annexure “MMTP 2”
to the answering affidavit). This resolution set in motion
negotiations regarding: “the package and the terms and
conditions
of the contract”. The negotiations culminated in the
written contract “MMPT 4”. Thereafter, Resolution
60/04/08
dated 15 April 2008 (annexure MMPT “6(b)” to the
answering affidavit) took the process further by, firstly, approving
the terms and conditions as set out in “MMP 4” and,
secondly, establishing the executive committee of five members
and
empowering it to scrutinize and validate annexure “MMPT 4”
with a view of submitting a final report containing
recommendations
to the Council in due course. Resolution SCM 101/06/08 is to the
respondents a formal approval, by ratification,
of the contents and
the signatures in annexure “MMPT 4” in terms of which
they consider themselves legally bound to
an employment relationship
for a period of five years.
[15] It seems to me that to determine the central
question the Court has to deal with two questions, firstly, whether
the processes
adopted which led to the formation of the contract of
employment “MMPT 4” produced an agreement for a three (3)
or
five (5) years period and, secondly, whether those processes had
been authorized by the first respondent.
[16]
The processes leading to the conclusion of the
employment contract:
On 03 August 2007 the first respondent advertised the
post of a municipal manager by means of Notice No. 10 of 2007,
annexure “A”,
for a fixed term period of three (3) years.
When it was discovered that the Notice was defective for a lack of
certain treasury
specifications the first respondent resolved to
re-advertise the post. That was duly done on 28 August 2007 by means
of annexure
“A1”. On 30 October 2007 a special meeting of
the Council was held at the City hall, Mthatha on,
inter alia
,
the matter of the appointment of the second respondent. The meeting
produced Resolution 125/10/07 which reads:
“
RESOLVED
(a) That Mr M.P. Tom be
APPOINTED
as the new Municipal
Manager of King Sabata Dalindyebo Municipality; and
(b) That negotiations be entered into between the candidate and
Council regarding the package and the terms and conditions of the
contract.”
This resolution, paved the way for the negotiations
which culminated on the acceptance by the second respondent of the
offer of
employment, in terms of annexure “MMPT 3” or
“D”, as a municipal manager on a fixed term of five
years.
The appointment letter was duly signed by the parties on 02
November 2007. It provides further that a written agreement
containing
the details of the second respondent’s duties,
remuneration, terms and conditions of employment would be signed upon
assumption
of duty. Such written agreement would also incorporate a
performance agreement. Having assumed his duties the second
respondent
together with the third respondent signed a “Fixed
Term Contract Of Employment”, annexure “MMPT 4”, on
20 November 2007. Clause 2.2 of this agreement is significant. It
provides:
“ Regardless of the date of signing this contract, the
employment of the Municipal Manager with the Municipality commences
on 19 November 2007 and terminates on 18 November 2012.”
[17] The issue concerning the appointment of the second
respondent was dealt with in a further special meeting of the Council
on
15 April 2008 at eNkululekweni Council Chamber, Mthatha. At this
meeting annexure “MMPT 4” was submitted for approval
after it had been circulated to all members for perusal before the
meeting was started. A resolution, Resolution SCM 60/04/08,
was
passed. It reads:
“
RESOLVED
(a) That the fixed term of contract of employment of the Municipal
Manager, Mr M.M.P. Tom is
APPROVED
in principle; and
(b) That the following five Councillors are
AUTHORISED
to
scrutinize, validate the Municipal Manager’s contract and
favour the next ensuing meeting of Council with a final report
containing recommendations:-
(i) Councillor L.N. Ntlonze (Convenor);
(ii) Councillor H.M. Ntshobane;
(iii) Councillor P.J. Gwadiso;
(iv) Councillor N. Ngqongwa; and
(v) Councillor M.A. Mayekiso
That the committee is also authorized to consult SALGA for their
final recommendations on the Municipal Manager’s contract.”
[18] Mr Mtwa, one of the councillors of the first
respondent, stated that he was delegated, together with others, to
serve in the
interviewing committee which interviewed the second
respondent for the post of a municipal manager. According to him the
committee
conducted the interview on the basis of a contractual
period of three (3) years as it had been indicated in the advert
(annexure
“A1”). Mr Songca, the Head of Human Resources
Office of the first respondent, corroborates the version of the
respondents
on the issue of the duration of the employment contract
of the second respondent. He states that it was one of his functions
to
advertise posts and to issue letters of appointment of municipal
managers. In this particular matter he, when advertising the post,
inadvertently used a template which had been used to advertise a
vacant post for the Chief Financial Officer (CFO). The posts for
the
CFO would be of three (3) years duration and the advert had been
published as such. As a result of using a wrong template,
the advert
for the post of the municipal manager carried an employment term of
three (3) years erroneously.
[19] Then in the last special meeting of the Council
held on 18 June 2008 it was resolved, per Resolution SCM 101/06/08,
that the
third respondent is authorized to sign the contract of
employment with retrospective effect. At the time when this
resolution was
made the employment contract “MMPT 4” had
already been signed on 20 November 2007. Based on this resolution the
respondents
contend that the signature that had been appended on
employment contact “MMPT 4” by the third respondent on 20
November
2007 was ratified by the Council with the result that the
employment contract binds the parties to an employment relationship
for
a period of five (5) years, which will come to an end on 18
November 2012.
[20] Although mention is made by the applicant that
there was a certain written contract of employment that was
circulated in a
meeting of 15 April 2008 no such contract has been
discovered in this case.
[21]
Submissions by the applicant:
I next deal with the submissions advanced on behalf of
the parties.
Mr Bodlani
, counsel for the applicant, argued the
applicant’s case on two fronts. In the first place, he
submitted that the employment
contract “MMPT 4” for a
fixed term of five (5) years never came into existence. There was
another employment contract
for a period of three (3) years which the
applicant saw being circulated to him and other members of Council in
a Special Council
meeting that was held on 15 April 2008. He
contended that the circulated contract is in synch with the intention
of the first respondent
to offer a three (3) years contract as is
evidenced in Notice No.40 of 2007 and the subsequent advertisements
on which the second
respondent submitted an application for
appointment as the municipal manager. At the same breath,
Mr
Bodlani
submitted that if the applicant fails on the first
submission, it will be submitted that, in the second place, the
employment contract
“MMPT 4” is in any event
null
and
void
ab initio
in that it does not comply with the
provisions of s 30 (5)(c) of the Structures Act, which reads:
“ Before a municipality council takes a decision on any of the
following maters it must first require its executive committee
or
executive manager, if it has such a committee or manager, to submit
to it a report and recommendation on the following matter
---
---
--- the appointment and conditions of service of the municipal
manager and a head of department of a municipality.”
He then contended that the validity of the employment
contract “MMPT 4” is impugned to the extent that despite
the Council
Resolution dated 15 April 2008 which required a committee
to scrutinize, validate the contract, consult Salga for its
recommendation
and then favour the next Council meeting (which was
held on 18 June 2008) with a final report containing its own
recommendation
on the manager’s contract, the Council made
Resolution SCM 101/06/08 authorising the third respondent to sign the
employment
contract with retrospective effect. He contended
strenuously that on that score the resolution violated the provisions
of s 30
(5)(c) of the Structures Act with the result that the
employment contract “MMPT 4” is
null
and
void.
For this submission counsel placed reliance on the case of
City
of Cape Town v Mgoqi and Another
2006 (4) SA 355
(C) at 386c-f.
[22]
Submissions by the respondents:
Mr Mbenenge SC,
duly assisted by
Ms Da Silva
,
submitted that an employment contract in terms of which a municipal
manager is engaged to serve for a period of five (5) years
is not
per
se
unlawful due to the amendment of the Systems Act on 09 October
2008, which reads:
“ (6) The employment contract for a municipal manager must –
be for a fixed term of employment up to a maximum of five (5) years,
not exceeding a period ending one after the election of
the next
council of the municipality.”
[23] The second submission made by
Mr Mbenenge
is
that a legally binding employment contract “MMPT 4” was
authorized by the Council of the first respondent in terms
of
Resolution SCM 101/06/08 dated 18 June 2008 and it remains valid and
enforceable to the extent that the resolution has not been
rescinded
by a competent authority. On this submission Senior Counsel pinned
his faith on the case of
Oudekraal Estates (Pty) Ltd v City of
Cape Town and Others
2004 (6) SA 222
(SCA).
[24] It was submitted further that flowing from the
maxim omnia praesumuntur rite esse acta
the councillor such as
the applicant can only upset the invalid resolution by way of giving
a notice of rescission or reconsideration
of the decision of Council
to pass the resolution as provided by the standing orders of the
municipality or, if the resolution
is clearly wrong or illegal, to
approach a court of law and ask to have such resolution declared
illegal. In this regard counsel
referred to the Supreme Court of
Appeal case of
Manana v KSD
(345/09)
[2010] ZASCA 144
(25
November 2010), which is not yet reported. In this case the applicant
has utilised neither of the two remedies which were available
to him
when the application was brought; so the argument went.
Mr
Mbenenge
also argued that the Court should exercise its
discretion in favour of the retention of the employment contract
“MMPT 4”
because of the inordinate delay, which has not
been condoned, it took the applicant to bring the present
application. On this submission
counsel referred to the cases of
Harnaker v Minister Of The Interior
1965 (1) SA 372
(C) at
381A-C; and
Mamabolo v Rustenburg RLC
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA),
para [13].
[25]
Applying the law to the facts:
The submission concerning the employment contract of
three (3) years that was allegedly circulated at the special meeting
of the
Council on 15 April 2008 raises an issue of dispute of fact
rather than law.
Mr Mbenenge
submitted anent this issue that
the allegation concerning the existence of such contract may be given
a short shrift if one has
regard to the fact that the existence of
such contract lacks evidential support in that on the applicant’s
own showing in
paragraph 10.1.1 of the replying affidavit he has no
possession of it. The applicant makes a bold assertion that a written
contract
for three (3) years exists on the face a of clear and
unequivocal statement by the respondents that annexure “MMPT 4”
is the only existing written agreement that was signed by the second
and third respondents on 20 November 2007 and which was later
on
ratified in terms of Resolutions SCM 60/04/08 and SCM 101/06/08. In
the circumstances, I agree with the submission by
Mr Mbenenge
that
a denial by the applicant of the existence of the employment contract
“MMPT 4” by merely asserting the existence
of some
unknown contract falls to be treated as fanciful and untenable as
envisaged in the case of
Truth Verification Testing Centre CC v
PSE Truth Detection CC & Others
1998 (2) SA 689
(W) at
698H-J. It is my finding that the employment contract “MMPT 4”
is the only existing document on which the terms
and conditions of
the employment agreement between the first and second respondents are
recorded. In the light of this finding
the applicant’s factual
denial that the intention of the first respondent was to offer five
(5) years contract does not raise
a genuine dispute of fact. The same
goes for the allegations made by Mr Mtwa. In a nutshell, this
application falls to be decided
on the version of the respondent in
terms of the rule in the case of
Plascon- Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
1984(3) SA 623 (A) at 634H-I.
Therefore, it seems to me that annexure “MMPT 4” has been
proved to be the only contract
that was ratified by Resolution SCM
101/06/08. But that is not the end of the matter.
[26] The submission that a contract period of five (5)
years may be applied in the appointment of municipal managers is
sustained.
Mr Bodlani
did not argue otherwise. His only
submission after the striking out of annexure “C”, on
which the intention argument
was anchored, seems to be the validity
argument to which I now turn.
[27] I am in agreement with
Mr Bodlani
that the
provisions of s 30 (5)(c) of the Structures Act were not complied
with by the first respondent in that the first respondent
did not
obtain a final report and recommendations of the committee of five
councilors that had been formed for that purpose. In
the event,
Resolution SCM IOI/06/08 is invalid.
[28] In contending that the employment contract “MMPT
4” is
null and void
on the basis that absent the
compliance with the provisions of s30(5)(c) by the first respondent,
the third respondent did not
have a proper delegation of the Council
to bind the first respondent in an employment relationship with the
second respondent for
a period of five years,
Mr Bodlani
placed reliance on the
dictum
in the case of
Mgoqi, supra,
at 386C-F which is in the following terms:
“ [106] If indeed it had been possible to delegate such power
to the Executive mayor, it would, as pointed out by Mr Binns-Ward,
lead to an absurd situation. A municipal council wishing to appoint a
municipal manager would be obliged to comply with s 30 (5)(c)
of the
Structures Act, which requires that the executive mayor submit a
report and recommendation regarding his appointment and
conditions of
service. An executive mayor clothed with the delegated power of
making such appointment could, however, dispense
with such
requirement on the basis that he or she could not be expected to
render a report or make a recommendation to himself
or herself. This
would amount to the municipal council delegating greater powers to
the executive mayor than it itself possessed.”
[29] Based on the shortcoming as aforestated,
Mr
Bodlani
argued strenuously that all the actions and /or omissions
of the third respondent which led to the signing of a fixed term
contract
for a period of five (5) years should be treated as
null
and
void.
With respect, I cannot agree with that
conclusion. Whilst I accept that the submission that Resolution SC
101/06/08 is invalid
for non-compliance with the provisions of s
30(5)(c) of the Structures Act, I am not persuaded that the applicant
has made out
a case for the nullification of the consequences of the
first respondent’s unlawful omission; of which the employment
contract
“MMPT 4” is one. I say this for the following
reasons:
(a) The resolution of the Council of the first
respondent, Resolution SCM 101/06/08 remains valid notwithstanding
non-compliance
with the provisions of s 30(5)(c) of the Structures
Act.
(b) The administrative remedies available to the
applicant were not utilized.
(c) The applicant has made no attempt to persuade the
Court to exercise discretion against the retention of the employment
contract
“MMPT 4”.
These reasons have been eloquently dealt with by
Mr
Mbenenge
in both the heads of arguments and oral arguments. I
proceed to deal with these reasons in the paragaraphs that follows:
[30] The principal relief sought in the notice of motion
is that the second respondent’s contract of employment “MMPT
4” should be declared to have been terminated by effluxion of
time on 30 October 2010. In the alternative, the Court is being
asked
to declare the employment contract
null
and
void.
There
is no relief seeking an annulment of Resolution SCM 101/06/08 on the
ground that it does not comply with s 30(5)(c) of the
Structures Act.
In my view it would be impermissible for a court to grant to a
litigant the relief which it never sought. In terms
of the notice of
motion the applicant seeks to impugn the contract and not the
Resolution that brought such a contract into existence.
The other
relief, including the alternative relief, are ancillary to the
principal relief and do not take the applicant’s
application
any further.
[31] For some reasons which are not apparent from the
applicant’s papers the administrative remedies which were
available
to the applicant at the time of bringing the application
were not utilized. The correct approach to have been followed by the
applicant
was to either attack Resolution SCM 101/06/08 in the
chamber of the Council itself and ask for a rescission or
reconsiderations
of it by means of a vote or, if he felt that the
Resolution was illegal, to approach a court of law and seek judicial
review of
the Resolution. Significantly, the applicant, being the
councillor who is expected to be
au fait
with legal disputes
arising from the municipality, ignored the instruction of the Supreme
Court of Appeal in the case of
Manana v KSD, supra,
at p11
which is stated in the following terms:
“ [W]hen once the council has taken a resolution it is not
competent for the chairman, any more than for any other councillor,
to declare it invalid and of no effect; nor is it competent for him
to take upon himself the responsibility of instructing the
town clerk
not to act on a resolution passed by a majority of the council. If
the chairman or any councillor is dissatisfied with
a resolution, his
course is to give notice of motion to rescind or reconsider the
resolution as provided by the standing orders.
That is one course. If
the resolution is clearly wrong or illegal, another course is to come
to Court, and ask to have such resolution
declared illegal.”
(cf Grace v McCulloch
1908
TH 165
at 175)
[32] The third reason is predicated on the
maxim
omnia praesumuntur rite esse acta,
the presumption of law which
is explained in the case of
Oudekraal Estates (Pty) Ltd v City Of
Cape Town And Others
2004 (6) SA 222
(SCA) paras. [26] and [27]
at 241-242 as follows:
“[26] For those reasons it is clear, in our view, that the
Administrator's permission was unlawful and invalid at the outset.
Whether he thereafter also exceeded his powers in granting extensions
for the lodgment of the general plan thus takes the matter
no
further. But the question that arises is what consequences follow
from the conclusion that the Administrator acted unlawfully.
Is the
permission that was granted by the Administrator simply to be
disregarded as if it had never existed? In other words, was
the Cape
Metropolitan Council entitled to disregard the Administrator's
approval and all its consequences merely because it believed
that
they were invalid provided that its belief was correct? In our view,
it was not. Until the Administrator's approval (and thus
also the
consequences of the approval) is set aside by a court in proceedings
for judicial review it exists in fact and it has
legal consequences
that cannot simply be overlooked. The proper functioning of a modern
State would be considerably compromised
if all administrative acts
could be given effect to or ignored depending upon the view the
subject takes of the validity of the
act in question. No doubt it is
for this reason that our law has always recognised that even an
unlawful administrative act is
capable of producing legally valid
consequences for so long as the unlawful act is not set aside.
[27]
The apparent anomaly (that an unlawful act can produce
legally effective consequences) is sometimes attributed to the effect
of
a presumption that administrative acts are valid, which is
explained as follows by Lawrence Baxter Administrative Law at 355:
'There exists an evidential presumption of validity expressed by
the maxim
omnia praesumuntur rite esse acta;
and
until the act in question is found to be unlawful by a court, there
is no certainty that it is. Hence it is sometimes argued
that
unlawful administrative acts are ''voidable'' because they have to be
annulled.'
At other times it has been explained on little more than pragmatic
grounds. In
Harnaker v Minister of the Interior 1
965 (1) SA
372
(C) Corbett J said at 381C that where a court declines to set
aside an invalid act on the grounds of delay (the same would apply
where it declines to do so on other grounds) '(i)n a sense delay
would . . . ''validate'' a nullity'. Or as Lord Radcliffe said
in
Smith v East Elloe Rural District Council
[1956] UKHL 2
;
[1956] AC 736
(HL)
at 769 - 70 ([1956]
1 All ER 855
at 871H;
[1956] 2 WLR 888):
'An [administrative] order . . . is still an act capable of legal
consequences. It bears no brand of invalidity upon its forehead.
Unless the necessary proceedings are taken at law to establish the
cause of invalidity and to get it quashed or otherwise upset,
it will
remain as effective for its ostensible purpose as the most impeccable
of orders.’”
(The underlining is mine for emphasis.)
[33] This Court would only be disposed to come to the
assistance of the applicant if it had been persuaded that the
substantive
invalidity of the Resolution has produced unlawful
administrative consequences. In the absence of an application for
review of
the Resolution it is impossible to make any assessment. The
applicant would have been required to demonstrate on affidavit that
the employment contract “MMPT 4” has invoked an injustice
for the municipality and which has an adverse effect to himself
directly. What is noteworthy of the Resolution is that it produced,
and it indeed confirmed, a normal employment relationship between
the
first and second respondent.
[34] It would again be impermissible of the Court to
come to the assistance of the applicant who had not brought an
application
for judicial review of administrative action within the
time frames as prescribed in s 7 (1) of the Promotion of
Administrative
Justice Act, Act No.3 of 2000. Consequently, the
invalid Resolution has for all intents and purposes to be regarded as
valid together
with all the consequences flowing from it, including
the employment contract “MMPT 4”.
[35] In the circumstances the applicant has failed to
make a case for the relief sought. The application falls to be
dismissed as
the second respondent’s contract of employment did
not terminate on 30 October 2010. The date of its termination should
be
determined in terms of the provisions of annexure “MMPT 4”.
[36]
The costs:
The circumstances of this case are such that the costs
of the application should be paid by the applicant, including the
costs that
were reserved on 15 December 2010. I will also grant costs
against the applicant for the employment of two counsel because the
case was of sufficient complexity to have warranted their employment.
The importance and magnitude of the case to the local government
is
another factor which justified of the employment of two counsel in my
view. The costs order should include the costs that were
reserved on
17 December 2010. However, there will be no costs order made for the
application to strike out as such costs were considered
in the
interlocutory application for discovery of documents.
[37]
The order:
The following order shall issue:
“
The application be and is hereby dismissed with costs which
shall include the reserved costs of 17 December 2010 and costs
attendant
upon the employment of two counsel.”
_________________________________
Z. M. NHLANGULELA
JUDGE OF THE HIGH COURT
Counsel for the applicant : Adv. M. Bodlani.
Instructed by : V.V. Msindo & Associates
Mthatha.
Counsel for the 1
st
and 2
nd
respondents: Adv. S.M.Mbenenge SC
appearing with Adv. A. M. Da Silva.
Instructed by : Mnqandi Inc.
Mthatha.